COMMONWEALTH vs. GERARDO CRUZ

Gerardo Cruz appeals from a judgment of a
single justice of this court allowing the Commonwealth's petition for relief
pursuant to G. L. c. 211, § 3.
The Commonwealth sought relief from the portion of a discovery order
that, in essence, required the prosecutor to produce certain exculpatory
information from the personnel files of the Boston Police Department and its
internal affairs division. We affirm.

Cruz is charged in the Boston Municipal
Court with two counts of unlawful possession of a firearm, unlawful possession
of ammunition, drug possession, two counts of possession with intent to
distribute drugs, and receiving stolen property. In October 2017, a judge in that court
granted in part Cruz's motion for discovery from the Commonwealth, including a
request, appearing in paragraph two of the endorsed motion, that the
Commonwealth produce "[d]ocuments and information concerning whether [the
Boston Police Department] has ever admonished, disciplined, investigated, [or]
reprimanded" the police officer who drafted the search warrant affidavit
in Cruz's case. At the hearing on the
motion, the judge made clear to the prosecutor that "in [her] view that
mean[t] personally looking through [internal affairs division] materials,
personnel files of this officer, and finding out from supervisors whether
there's anything of that nature."
The Commonwealth sought reconsideration of the order insofar as it purported
to require the prosecutor, pursuant to Mass. R. Crim. P. 14, as appearing in
442 Mass. 1518 (2004), to review files not in the Commonwealth's
"possession, custody or control." [1]
The motion judge denied the request for reconsideration, and the
Commonwealth then sought relief from a single justice of this court pursuant to
G. L. c. 211, § 3.

After a hearing, the single justice
allowed the Commonwealth's petition, reasoning that "[h]ere, as in
Commonwealth v. Wanis, 426 Mass. 639, 644 (1998), 'the judge erred in ordering
discovery pursuant to rule 14 of records of the internal affairs division of a
police department against a prosecutor who did not have possession, custody, or
control of any of the requested information.'
Commonwealth v. Rodriguez, 426 Mass. 647, 648 (1998)." The single justice further found that to the
extent that the request at issue was made pursuant to Mass. R. Crim. P. 17, 378
Mass. 885 (1979), the requirements of neither rule 17 nor Wanis were satisfied.

"We review a decision of the single
justice . . . under G. L. c. 211, § 3, only for 'clear error of
law or abuse of discretion.'" Commonwealth v. Bertini, 466 Mass.
131, 137 (2013), quoting Caggiano v. Commonwealth, 406 Mass. 1004, 1005
(1990). Here, the single justice
properly vacated paragraph two of the discovery order to the extent it
"require[d] the prosecutor assigned to the case to look through the
internal affairs division file and/or other personnel files of the Boston
police officer who wrote the search warrant affidavit," where such
materials were not in the possession, custody, or control of the Commonwealth.
[2] But by vacating the provision of the
discovery order that contained this requirement, the single justice did nothing
to relieve the Commonwealth of its ongoing duty to disclose exculpatory
information -- including any material, exculpatory information related to past
discipline or internal investigation of the officer in question -- to the
extent such information is in the possession, custody, or control of the
prosecution team. Wanis, 426 Mass. at
644. See Mass. R. Crim. P.
14 (a).

Moreover, Cruz is not necessarily
foreclosed from seeking additional materials from the Boston Police Department
through a motion pursuant to rule 17, provided that he can meet the applicable
legal standard under that rule. See
Wanis, 426 Mass. at 643-644. See also
Commonwealth v. Dwyer, 448 Mass. 122, 139-147 (2006) (discussing protocol for
pretrial inspection of third-party records under Mass. R. Crim. P. 17);
Commonwealth v. Lampron, 441 Mass. 265, 268 (2004) (holding that
"[r]egardless of how a defendant styles his request, pursuit of documents
and records in the possession of a nonparty must be considered and analyzed
under rule 17 [a] [2]"); Rodriguez, 426 Mass. at 648-650
(concerning rule 17 discovery of certain records of internal affairs division).

Judgment
affirmed.

Mark Booker for the respondent.

John P. Zanini, Assistant District
Attorney (AlexaRae Wright, Assistant District Attorney, also present) for the
Commonwealth.

footnotes

[1] The parties dispute whether the
challenged portion of the discovery order was issued pursuant to Mass. R. Crim.
P. 14 or Mass. R. Crim. P. 17, 378 Mass. 885 (1979). Because the dispute centers on the scope of
the prosecutor's obligations under the discovery order (rather than the Boston
Police Department's), we treat it primarily under rule 14.

[2] Cruz argues that the single justice
erred in determining that the discovery order was modified by the trial judge's
comments at the hearing to include this requirement. We see no error in the single justice's
interpretation. In any event, to the
extent the single justice may have gone further than necessary in vacating the
entirety of paragraph two, as opposed to merely clarifying the prosecutor's
obligations under that paragraph, there would be no prejudice to Cruz, for the
reasons discussed herein.